Reprinted from the November 15, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Not-So-Innocent Employee Claims Co-Workers
Guilty Of Harassment

One of the many gray areas that can confuse sexual harassment situations is when a harassment complaint is filed by an employee who isn’t exactly an angel, either. You may find it hard to believe that an employee who has engaged in inappropriate behavior now takes offense to it. Immediately dismissing the complaint, though, could be the greatest offense to the employee.

EMPLOYEE’S COMPLAINT FLASHES RED LIGHT

Terri Thomason waved a picture in her manager’s face. “Will you take a look at this? This is what the guys put up on the bulletin board today,” she said.

Steven Ruiz took the picture out of her hand. It was a photo of a naked woman with Thomason’s head superimposed on it.

“They all got a good laugh, but I don’t think it’s funny at all,” she fumed. “It’s bad enough that they download this kind of stuff off their computers just about every day it seems. It’s even worse when they pop a porno into the VCR in the break room. I think they do it just to get me to leave the room. But now they’re making it too personal.”

“You’ve worked with those guys for years. Why don’t you just tell them to knock it off?”

“I have. But they won’t listen to me. It just encourages them to keep doing it.”

“Are you sure they’re not encouraged by the fact that you’ve told some pretty dirty jokes before? I’ve heard some of them say in the past how cool they think you are — the only woman in the department acting like ‘one of the guys.’”

“Well, considering this picture, they obviously don’t see me as ‘one of the guys’ any more!”

EMPLOYEE’S LAWSUIT GETS GREEN LIGHT

Ruiz listened to Thomason’s complaints, but then tucked them in the back of his mind. Admittedly, the men were not the most wholesome bunch of employees. However, Ruiz figured she had tolerated their antics for a few years now, and even took part in conversations of a sexual nature.

Those were his defenses in court when Thomason filed a sexual harassment lawsuit against the company. She claimed that Ruiz failed to investigate or effectively respond to her numerous complaints.

The court rejected the company’s arguments and sent the case to trial. Said the court: Even if the company could establish that the employee was comfortable with, or even engaged in, certain sexual behavior in the workplace, “a reasonable jury need not conclude that she was thereby comfortable with the behavior of which she now complains: being singled out by an all-male staff as the lone target of sexually explicit materials.”

SLOW DOWN AT YELLOW LIGHT

Be careful of judging employees too quickly. Never assume that an employee who is comfortable with certain sexual behavior is therefore comfortable with all such behavior. In fact, you should be concerned with finding out what changed to make previously tolerated behavior now offensive to the same person.

If you jump to conclusions and decide prematurely that illegal harassment has not occurred, you will miss out on the opportunity to rectify behavior that is, at best, inappropriate, and, at worst, illegal — which will not look good for your company in court.

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